THE 1985 UN VICTIMS’ DECLARATION (the short name!)

1. THE 1985 UN VICTIMS’ DECLARATION (the short name!) ASSOCIATE PROFESSOR SAM GARKAWE LECTURE FOR 11TH ASIAN POST-GRADUATE COURSE ON VICTIMS

2. WHAT IS THE UN VICTIMS’ DECLARATION? • AN ASPIRATIONAL DOCUMENT THAT HOPEFULLY ALL STATES WILL FOLLOW • ‘SOFT LAW’ ONLY IN INTERNATIONAL LAW TERMS – HAS NO ENFORCEABLE STATUS • WENT THROUGH THE UN GENERAL ASSEMBLY IN 1985; NO VOTES AGAINST; 128 VOTES FOR • CONSIDERED VICTIM MOVEMENT’S ‘MAGNA CARTA’ – LIKE THE UDHR IS TO HUMAN RIGHTS ADVOCATES

3. HISTORY OF THE DECLARATION I • DISCUSSED AND DEBATED DURING THE 1985 UN CRIME CONGRESS HELD IN ZAGREB, CROATIA (then the former Yugoslavia) • THE WSV HAD A PROMINENT ROLE IN ITS DRAFTING AND ITS CONTENT, BUT ULTIMATELY STATES HAD TO COME TO AN AGREEMENT • NEGOTIATIONS ON ITS TERMS TOOK PLACE BETWEEN DEVELOPED AND DEVELOPING NATIONS • AFTER AGREEMENT AT CRIME CONGRESS IT MADE ITS WAY TO THE UN GENERAL ASSEMBLY

4. HISTORY OF THE DECLARATION II • MAIN STICKING POINT WAS WHAT VICTIMS SHOULD BE INCLUDED • ALL AGREED THAT VICTIMS OF CRIME SHOULD BE INCLUDED • KEY POINT OF DIFFERENCE CONCERNED VICTIMS OF ABUSE OF POWER • DEVELOPED NATIONS WANTED NO MENTION OF THESE VICTIMS – WHY? • DEVELOPING NATIONS WANTED THESE VICTIMS TO BE INCLUDED AND HAVE SAME RIGHTS AS VICTIMS OF CRIME

5. HISTORY OF THE DECLARATION III • COMPROMISE ADOPTED WAS THAT VICTIMS OF ABUSE OF POWER WOULD BE INCLUDED, BUT WOULD HAVE FAR LESS RIGHTS • SEE THE TERMS OF THE DECLARATION – VICTIMS OF CRIME COVERED IN ARTICLES 1-17; VICTIMS OF ABUSE OF POWER COVERED IN ARTICLES 18-21 • THE ARTICLES ON VICTIMS OF ABUSE OF POWER ARE VERY GENERAL, NOT NEARLY AS SPECIFIC

6. WHAT DOES DECLARATION DO? • IT DEFINES TWO CATEGORIES OF VICTIMS THAT ARE MENTIONED IN THE FULL TITLE • IT THEN SETS OUT THE OBLIGATIONS OF STATES TOWARDS THESE TYPES OF VICTIMS • ARE THESE LEGAL OBLIGATIONS? MORAL OBLIGATIONS? A COMBINATION OF BOTH?

7. VICTIMS OF CRIME I – DEFINITION I • DEFINED IN ARTICLE ONE AS PERSON(S) WHO HAVE SUFFERED HARM (VERY BROADLY DEFINED) THROUGH ACTS OR OMISSIONS THAT ARE IN VIOLATION OF CRIMINAL LAWS AS DEFINED BY NATIONAL LAWS • CAN BE INDIVIDUAL OR COLLECTIVE • DEFINITION TIED TO NATIONAL LAWS

8. VICTIMS OF CRIME I – DEFINITION II • ARTICLE TWO MAKES IT CLEAR THAT ONE IS A VICTIM ‘REGARDLESS OF WHETHER THE PERPETRATOR IS IDENTIFIED, APPREHENDED, PROSECUTED OR CONVICTED ..’ • ALSO REGARDLESS OF THE RELATIONSHIP BETWEEN THE VICTIM AND THE PERPETRATOR – WHAT IS THIS AIMED AT? • VICTIMS ALSO INCLUDE IMMEDIATE FAMILY & DEPENDANTS, AND THOSE WHO INTERVENE TO ASSIST OR PREVENT VICTIMISATION

9. VICTIMS OF CRIME II KEY OBLIGATIONS ON STATES • ACCESS TO JUSTICE AND FAIR TREATMENT (ARTICLES 4-7) – 4 & 6 (b) • RESTITUTION [FROM OFFENDER] (ARTICLES 8-11) – 10 & 11 • COMPENSATION [FROM THE STATE] (ARTICLES 12-13) • ASSISTANCE (ARTICLES 14-17)

10. VICTIMS OF ABUSE OF POWER I • DEFINED IN ARTICLE 18 – THOSE WHO SUFFER HARM (again broadly defined) THROUGH ACTS OR OMISSIONS THAT DO NOT YET CONSTITUTE VIOLATIONS OF NATIONAL CRIMINAL LAWS BUT OF INTERNATIONALLY RECOGNIZED HUMAN RIGHTS NORMS • DEFINITION TIED TO HUMAN RIGHTS NORMS – MUCH MORE UNCERTAIN AS TO WHAT THESE ARE EXACTLY

11. VICTIMS OF ABUSE OF POWER II • HOW IS THE DEFINITION TO BE UNDERSTOOD? THERE IS MUCH CONFUSION AND MISUNDERSTANDING • THERE MIGHT BE TWO TYPES OF ABUSE OF POWER VICTIMS – 1) VICTIMS OF CRIMES BY STATE OFFICIALS AND OTHERS THAT HAVE NOT BEEN INVESTIGATED OR PROSECUTED (called NON-PROSECUTORIAL VICTIMS) – THE COMMON (MIS)UNDERSTANDING OF THE TERM. THIS IS CLEARLY INCORRECT LEGALLY UNDER THE DECLARATION AS THESE PEOPLE ARE IN FACT VICTIMS OF CRIME (SEE DEFINITION AND ARTICLE TWO)

12. VICTIMS OF ABUSE OF POWER II • THE CORRECT UNDERSTANDING OF ABUSE OF POWER VICTIMS ARE WHERE GOVERNMENTS DELIBERATELY DO NOT CRIMINALISE OR LEGALISE ACTIONS THAT SHOULD BE CRIMINAL OFFENCES, BUT DUE TO THE IMMORAL NATURE OF THE GOVERNMENT, THEY ARE NOT. TERMED IMMORAL ABUSE OF POWER VICTIMS (LEROY LAMBORN). The best examples are 1) blacks who suffered discrimination, forced removal etc. under apartheid laws AND 2) Nazi laws that allowed minorities to be victimised ‘legally’

13. VICTIMS OF ABUSE OF POWER III OBLIGATIONS OF GOVERNMENTS • VERY WEAK – READ ARTICLES 19-21 • WHAT DO YOU THINK ARTICLE 20 IS AIMED AT? WHAT ABOUT ARTICLE 21? • MUCH BETTER TO BE A VICTIM OF CRIME THAN A VICTIM OF ABUSE OF POWER UNDER THE DECLARATION – YOU WILL HAVE FAR MORE POTENTIAL RIGHTS

14. IMPORTANCE OF THE DECLARATION I SYMBOLICALLY • UNIVERSAL PRINCIPLES ON HOW VICTIMS SHOULD BE TREATED • SHOWS VICTIMS ARE DESERVING ON INTERNATIONAL ATTENTION AND CONSIDERATION; VICTIMS ARE NOT JUST A NATIONAL ISSUE • ROLE OF VICTIMOLOGISTS, SUCH AS THE WSV • IMPORTANCE OF THE WSV BEING RECOGNISED BY THE UN SYSTEM

15. IMPORTANCE OF THE DECLARATION II PRACTICALLY • INTERNATIONALLY – HAS LED TO SOME OF ITS PRINCIPLES BEING INCORPORATED INTO IMPORTANT TREATIES, SUCH AS: * ARTS. 24/25 CON. Against TRANSITIONAL CRIME * ARTS. 6-8 OF HUMAN TRAFFICKING PROTOCOL TO ABOVE TREATY * ART 68 (3) OF ICC STATUTE – EXACT LANGUAGE OF ARTICLE 6 (b) USED * 2005 RIGHT TO A REMEDY AND REPARATION

16. IMPORTANCE OF THE DECLARATION II PRACTICALLY (CONT..) • MANY DOMESTIC CRIMINAL JUSTICE SYSTEMS HAVE ADOPTED IN SOME WAYS THE PRINCIPLES BEHIND THE DECLARATION • SOME LEGISLATION HAS EXPRESSLY SAID THE DECLARATION GUIDES THEM eg. VICTIMS’ CHARTER ACT (Victoria, Australia) 2006 says in s4 (2) ‘the objects [of the legislation] are based upon the UN Declaration’